9911796707
TMI Blog2015 (11) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... case the income of an assessee arising from contract, in India, be treated as taxable in India as PE of an assessee exists in terms of article 5(2)(A) (B) (C) beside 5(2)(J) of DATA with USA? 2. Whether interest income earned in India can be treated as Business Income for taxation and can be not taxed as per DATA with USA?" 3. It would appear that, against the judgment sought to be reviewed, SLPs were carried before the Hon'ble Apex Court; but the same came to be withdrawn with liberty to file review petitions and it is, thereafter, that the present Review Petitions have been filed. 4. We had condoned the delay in filing the Applications for Review. We have heard the learned counsel for the appellant / review petitioner and the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question." 9. He would, therefore, submit that the Court has not answered the substantial question of law, which was formulated, insofar as it has not given its finding in regard to the availability of a Permanent Establishment in India on the basis of the provisions contained in Clauses (a) (b) & (c) of Article 5(2) of the Agreement. 10. Article 5(2) provides that the term 'permanent establishment' includes especially (a) a place of management; (b) a branch; and (c) an office. 11. From the perusal of the orders passed, we notice that the appeals were never admitted. The question of law was not formulated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body corporate established under the laws of USA, having its office at 1101, Phil Tower Building, City of Tulsa, Oklahoma, USA, and also having its India office at 501, Balaram, Bandra-Kurla Complex, Bandra (East), Mumbai-400051. It is submitted that the agreement had been concluded from this office and all business activities in pursuance of the agreement and the other agreement have been managed and controlled from this office. Therefore, this office constitutes PE in terms of Article 5(1), 5(2)(a) and 5(2)(c). On the other hand, the submission of the ld. counsel is that there is no fact on record to show that the business of the assessee was wholly or partly carried on from this office. Further, there is no evidence that the activities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be ascertained whether the assessee had a PE in terms of the aforesaid provisions. From the OECD commentary in the matter, which is of persuasive value, and reading of paragraphs (1) and (2) of Article 5, it is clear that it has to be shown that the business of the assessee had been wholly or partly carried on from this office. There is no evidence to show that any business was carried on except that the address has been mentioned in the agreement. That by itself does not lead to inference of PE under these provisions. Therefore the matter is decided accordingly." 13. The learned counsel for the respondent, in fact, would submit that finding of this nature does not even give rise to a substantial question of law. That is to say, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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